V. Egypt's Lethal Border Control Policy in Sinai, and
Israeli Pressure for Border Control and Returns

June 2007: Policies Toughen

In late June 2007, Egyptian President Hosni Mubarak and
Israeli then-Prime Minister Ehud Olmert, meeting in the Sinai resort of Sharm
el-Sheikh, discussed the issue of the increasing numbers of Africans crossing
into Israel from Egypt.[73]
Olmert stated on July 1 that he had reached an "understanding" with Mubarak on
"ways to deal with infiltration into Israel via the Egyptian border."[74]
According to Olmert, Egypt agreed "to receive back infiltrators who cross the
common border as well as all those who cross it in the future, and will work to
prevent future infiltrations from its territory." Israel, he said, would accept
"Egyptian assurances regarding their safety." According to Israeli news
reports, Egypt agreed to receive hundreds of migrants who had crossed into
Israel during the previous six months.[75]

Days earlier, on June 20, a joint session of Israeli
parliamentary committees had discussed the increasing numbers of Sudanese, Eritreans,
and Ivorians crossing into the country from Egypt. According to the Israeli
newspaper Haaretz, a UNHCR representative, Sharon Harel, addressed the
session, saying that Israel must not send Sudanese back to Egypt due to the
possibility that Egypt would deport them to Sudan, where their lives would be
at risk. A member of the Labor party, Avishay Braverman, predicted that Israel
would be forced to deport the Sudanese "when the numbers grow," and that
Israel, the United States, and Europe should pressure Egypt to absorb Sudanese
returnees instead of "spill[ing] their blood" by deporting them."[76]

Blood was spilled, but on Israel's doorstep rather than in
Sudan. Within three days of Olmert's post-Sharm el-Sheikh announcement, what
appears to have been the new Egyptian policy to "prevent future infiltrations
from its territory" claimed its first victim. On July 4, 2007, Egyptian border
police shot and critically wounded a Sudanese man trying to cross the border
into Israel south of Rafah.[77]
Two-and-a-half weeks later, on July 22, Egyptian border police killed Hadja
Abbas Haroun, a 28-year-old Darfuri woman, who was seven months pregnant, as
she was trying to cross the border near al-Aouja, 62 miles south of Rafah.[78]
The Egyptian commander at the Rafah crossing between Egypt and the Gaza Strip,
Col. Amr Mamdouh, speaking with a Washington Post reporter about the
incident, said that Egyptian border guards shouted "three or four times" at
Haroun and her family to stop. "But they refused. So in this case we had to
fire shots, warning shots, in the air. In the dark we cannot see the women from
the men. And all of them are black."[79]

On the night of August 1, 2007, according to an Israeli news
broadcast, Israeli soldiers witnessed Egyptian border police kill four migrants
who were attempting to cross the Sinai border into Israel.[80]
Israel's Channel 10 Television screened footage from an Israeli Defense Forces
(IDF) surveillance video showing the migrants running toward the border. A man
the broadcast identified as an Israeli soldier said that he saw Egyptian police
"instantly open fire" at the group, apparently killing one man and wounding two
others. A fourth reached the border fence, where Israeli soldiers reached out
to him but were unable to help him to safety before Egyptian guards got to him
and dragged him back. As the Israeli soldiers watched, the Egyptian guards
bludgeoned this man and the other wounded migrants to death. "They killed two
men with their own hands and sticks and rocks," another Israeli soldier told
Channel 10. "We heard them crying and screeching in pain until they died."[81]

On August 3, 63 members of the Knesset, Israel's parliament,
signed a petition calling on Olmert's government not to deport "refugees" back
to Egypt. The petition, citing "the history of the Jewish people and the values
of democracy and humanity," said Israel had a "moral duty" to give "protection
and shelter" to refugees.[82]

On August 11, Egypt issued an official statement claiming
that "Egypt did not agree to re-admit the persons who previously trespassed to
Israel through the Egyptian borders, affirming that Egypt officially conveyed
to Israel that it is not obligated to receive any non-Egyptian citizen who has
illegally trespassed to Israel."[83]

The Israeli government's overall response to the recent
African arrivals has been incoherent.[84]
Some officials have argued that most border-crossers should be treated harshly.
The newspaper Haaretz reported that at a meeting of officials on
February 24, 2008, Prime Minister Olmert requested Israel's defense minister
Ehud Barak, "to relax Israel's policy … to make it easier for border troops to
open fire on people trying to cross into Israel illegally." Barak rejected
Olmert's recommendation.[85]

Egypt's Efforts to Justify Lethal Force at the Border

Between July 2007 and October 2008, Egyptian border forces
killed at least 33 migrants at or near the Sinai border with Israel and wounded
scores of others.[86]
The actual numbers may be higher, since news media may not learn of all the
shootings, many of which occurred in remote desert areas in a closed military
zone. The Egyptian government has not released official figures on the number
of fatalities. In addition, these figures do not account for persons who may
have died later from injuries sustained in an encounter on the border. "We are
wondering about our people who crossed the border," a Sudanese church leader
told Human Rights Watch.

In many cases we don't know if someone was arrested or
killed. Sometimes the Egyptians contact us if they identify those dead or in
jail; but we don't know if this is the majority. Probably it isn't. We only
know about the three bodies we have seen with our own eyes. Wik Malong Agiw, a
Dinka from Aweil in the Barakatal region, and a lady from Darfur, and an old
man from the Nuba mountains who was killed last week. But so many have gone to
the border. Where are the rest?[87]

In an official statement issued on August 11, 2007, Egypt
provided a national security rationale for the use of lethal force:

The number of people trespassing to Israel through the
Egyptian-Israeli borders has increased exponentially over the last couple of
years. Both countries [should prevent] illegal activities such as trespassing
across the borders or smuggling … after the outrageous terrorist attacks on
Sinai. Egyptian authorities are combating this growing phenomenon since it
jeopardizes security and should be firmly dealt with, especially now there are
organized networks that facilitate illegal trespassing.[88]

Egyptian foreign ministry officials reiterated these views
to Human Rights Watch in March 2008, commenting that security along the Sinai
border was internationally sensitive, with Egypt coming under Israeli and US
criticism for failing to prevent weapons smuggling into the Gaza Strip.[89]Further, the officials said, the Egypt-Israel peace treaty of 1979 limits
the number of forces Egypt may deploy along the border, and many more would be
needed if restrictions were imposed upon their ability to use lethal force.
These officials told Human Rights Watch that Egypt was allowed to deploy only
750 armed personnel along the border.

However, this figure of 750 refers only to the number of
military personnel Egypt is allowed to deploy along the 15-kilometer border
with the Gaza Strip, and does not derive from the 1979 peace treaty.[90]
There are no international or bilaterally-agreed restrictions on the number of
police Egypt can station along the rest of the 266-kilometer border with
Israel. Under the 1979 peace treaty, an unspecified number of Egyptian police
share control of the Egyptian border zone ("Zone C") of the Sinai peninsula
with a Multinational Force and Observers (MFO).[91]

Egyptian officials have claimed that Egyptian border forces
are justified in shooting at persons in the border security zone on several
terrorism-related grounds. The August 2007 statement refers to the terrorist
attacks against tourist and other sites in the Sinai between 2004 and 2006. At
one point Egypt linked these terrorist bombings to Palestinian groups based in
the Gaza Strip, but persons arrested by Egyptian security forces in connection
with those attacks were mainly if not exclusively Egyptians, including three
persons sentenced to death by an Egyptian tribunal in connection with the Taba
bombings of October 2004.[92]
Officials have also referred to the possible route of Gaza-based Palestinians
intent on carrying out attacks inside southern Israel, and indeed one and
possibly all three suicide bombers who attacked the southern Israeli cities of
Eilat and Dimona in 2007 and 2008, respectively, came from the Gaza Strip and
crossed into Israel via the Sinai border.[93] Egypt could argue
that tight security is needed along the entire border to apprehend such
terrorists, but this does not justify a blanket policy of live fire against all
persons who attempt to cross the border. Similarly, heightened Egyptian
security concerns along the 14-kilometer long Gaza-Egypt border-due to
weapons-smuggling tunnels, clashes between Palestinians and Egyptian border
security, and Hamas's breach of the border fence at Rafah-do not justify the
use of live fire against migrants and refugees at all points along the rest of
the Sinai border.[94]

Egyptian authorities also argue that the phenomenon of
migrants and refugees leaving Egypt for Israel is a threat to Egypt's national
security because of its alleged connection to transnational organized criminal
groups that are involved in smuggling women sex workers and drugs into Israel.[95]Areas south of Egypt's tightly-monitored border with the Gaza Strip are,
according to Israeli researchers who have examined the trafficking issue, "a
zone of transit for drugs and clandestine migrants and a notorious base for
networks bringing women … to work as prostitutes in Israel."[96]
The authors of the US State Department's 2006 report on human trafficking
wrote,

Egypt is a transit country for women trafficked from
Eastern Europe … to Israel for the purpose of sexual exploitation. These women
generally arrive in Egypt through air and seaports as tourists and are
subsequently trafficked through the Sinai Desert by Bedouin tribes. Men and
women from sub-Saharan Africa and Asia are similarly believed to be trafficked
through the Sinai Desert to Israel and Europe for labor exploitation.[97]

Egyptian police have apprehended illegal migrants of diverse
nationalities at the Sinai border-including Turks, Georgians, and Chinese-as
well as women who may have been victims of trafficking, including Ukrainians
and Russians. Egyptian border police are known to have killed one Turk and
wounded two others in an October 2007 incident.[98]
But otherwise all of the known shooting victims at the border have been African
migrants, an imbalance that appears to undermine Egypt's justification of its
policy of lethal force as a response driven by the wider phenomenon of
trafficking and smuggling in the Sinai.[99] Even if the people
being apprehended were traffickers, that would not in itself justify lethal
force.

Egypt in breach of international standards on use of force

According to a Ministry of Foreign Affairs statement of
August 11, 2007, Egyptian and international laws grant the authorities the
"right" to "use force to stop illegal trespassing across the borders."[100]
Egyptian authorities, it said, provide warnings before using force. "However,
some trespassers refuse to stop, in which case the authorities have to deal
with them to ensure respect for the law."

Egyptian killings of migrants, asylum seekers, and refugees
who attempt to enter Israel violate the International Covenant on Civil and
Political Rights, which Egypt ratified in 1982 and which provides, "No one
shall be arbitrarily deprived of his life" (article 6). This non-derogable
obligation applies with regard to anyone on Egypt's territory or under its
jurisdiction. According to the Human Rights Committee, a body of experts
mandated to monitor state compliance with the ICCPR, states parties should
"take measures to prevent arbitrary killing by their own security forces," and
should ensure that laws "strictly control and limit the circumstances in which
a person may be deprived of his life by such authorities."[101]
Egypt is also a state party to the African Charter on Human and Peoples' Rights
(ACHPR), which similarly prohibits the arbitrary taking of life (article 4).[102]

The UN Basic Principles on the Use of Force and Firearms by
Law Enforcement Officials provide guidance in applying these human rights
standards to the actions of Egyptian border police. These principles prohibit
the intentional lethal use of firearms by law enforcement officials except when
"strictly unavoidable in order to protect life" (principle 9). When firearms
are used, law enforcement officials must ensure that relatives or close friends
of the injured person are notified at the earliest possible moment (principle
5). Governments are obliged to criminally punish the arbitrary or abusive use
of force and firearms by law enforcement officials, and are prohibited from
invoking "exceptional circumstances," including public emergencies, to justify
any departure from the principles (principle 8). The apparent lack of any
official investigation into use of lethal force at the border violates Egypt's
obligation to provide redress by investigating these deaths and, where
appropriate, prosecuting any persons found responsible for unlawful killings.[103]

Lethal force would be justified only in cases where it is
necessary and proportionate to threats to the physical security of border
guards. Clearly, in some cases smugglers are armed. One Masalit man from Darfur
described receiving his final instructions from the smugglers: "The Bedouin
blindfolded us and we walked for two hours, until we heard the Egyptian police
talking, and their dogs [barking]. Then he told us, 'You have to cross the
border, even if they shoot you. If you come back we will also shoot you.'"[104]
Human Rights Watch is aware of two reported cases in which Egyptian border
police exchanged fire with people-smugglers near the border. On the first
occasion, an Egyptian border guard was shot dead when he confronted smugglers
leading a large group of migrants approximately 10 kilometers southwest of the
Gaza Strip (and a number of kilometers from the border, which lies to the
southeast).[105]In another reported exchange of fire, smugglers shot and killed
21-year-old Mohamed Ahmed Hassanein, a conscript in the Egyptian Central
Security Forces, about 16 kilometers from Sinai's Mediterranean coast.[106]

Human Rights Watch learned of two other cases where Egyptian
police discovered people smugglers near the border. N.A. was traveling with a
group of migrants accompanied by three men whom she described as guards and a
scout, presumably smugglers, who fled immediately when Egyptian border forces
discovered them: "We were waiting for the man who had gone ahead to scout for
us, but before he came back the army [sic] saw him. The two men who were
guarding us ran away." Egyptian forces then began firing at the group.[107]In another case, Egyptian forces reportedly shot dead an Egyptian Bedouin
man as he tried to help African migrants cross the Israeli border.[108]

These cases were, however, exceptions to a larger trend.
Egypt's claim that the fight against smuggling networks necessitates border
guards' use of lethal force appears questionable in the majority of cases Human
Rights Watch investigated, where smugglers were not present when border guards
opened fire at migrants. Interviews with refugees, asylum seekers, and migrants
show a common pattern whereby smugglers, whom interviewees identified as
Bedouins, wait until nightfall, lead the migrants to within walking distance of
the border, orient them in its direction, and leave. Human Rights Watch
attempted but was unable to interview smugglers. One smuggler told a Reuters
reporter that he prudently limited his contact with refugees. Before making the
final leg of the journey to the border, he said, "[w]e leave the Sudanese in a
Bedouin tent so that if the police arrest them, we're far off."[109]

Human Rights Watch found no evidence to suggest that
Egyptian border guards are shooting at migrants because they mistakenly believe
them to be dangerous criminals. The migrants and refugees Human Rights Watch
interviewed typically attempted to cross the border in large groups of between
10 and 40 or more people, under cover of darkness. Entire families frequently
made the crossing. Several refugees and migrants said that border guards were
alerted to their presence when young children began to cry. M.M. said he was
crossing the border in a group of 37 people when border police heard them.

It was 8 p.m., and there was no moon, it was blackout. But
the soldiers could hear us, they were saying "Ay ay ay!" to scare us. They
shouted "Hey, samara [black]!" … I heard the bullets going past, they were
shooting at us from both sides.[110]

In another case, Egyptian border guards began firing at a
group of migrants who became visible as Israeli border guards illuminated them.
M.B., a 26-year-old Darfuri man who crossed the border on August 28, 2007,
recalled,

The Egyptians didn't see us at first, but then the Israelis
shined a light on us from their side, and the Egyptians started shooting at us.
There were three fences, and I made it past the first two, but at the third one
I was shot. They shot me three times. But the Israelis told the Egyptians to
stop shooting, they said it in Arabic. And I was lucky because the Israelis
called an ambulance after I fell. I couldn't speak for three days.[111]

Further, there is no evidence, and Egyptian officials have
not claimed, that in any of the known cases where Egyptian border guards killed
or wounded migrants and refugees, they fired in self-defense. N.A., the Darfuri
woman quoted above, recalled that Egyptian border forces fired at the group she
was traveling with even though they were seated:

[T]he army started shooting at the group of us sitting on
the ground. They were shouting, "Do any of you have a gun?" They were firing
for a long time. They encircled us. Then dawn came. They checked and there was
one dead and five injured. Then they took us to a military camp-they took all of
us, they took our clothes and our documents and our money. They used our
clothes to clean up the blood of the wounded people.[112]

In none of the killings has it been shown that the
intentional lethal use of force by border police was strictly unavoidable in
order to protect life-the only ground permitted for such use in the UN Basic
Principles on the Use of Force and Firearms.

Egyptian guards along the Sinai border are apparently under
orders to use lethal force against migrants and refugees regardless of whether
the latter pose any threat. Egyptian officials have stressed, and some witness
accounts confirm, that Egyptian border police follow a common warning procedure
before directly targeting people attempting to cross the border. A Southern
Sudanese man who crossed the border on February 17, 2008, said,

I could see the police. They shouted, and shot up in the
air, then down. I saw someone dead in front of me, his name was Wik. And I saw
another person get shot in the legs and in the wrist, when they shot down. Then
they brought an ambulance-we saw them loading it up, when we made it across the
border. We were watching them put in people-people lying quiet.[113]

Such a warning procedure is irrelevant to the legality of
lethal force by police in instances other than self defense. In other cases,
including the events witnessed by IDF soldiers on August 1, 2007, border guards
reportedly opened fire on fleeing migrants without warning. "They just started
shooting at us-we were really surprised," said a southern Sudanese man who
crossed into Israel in early August, 2007.[114]"I saw
one man get shot in his leg. Mohammed. He was from Darfur also. I don't know
what happened to him [after that]. You don't know what has happened to your
friend." Nine of his group of 38 migrants crossed two fences into Israel, where
IDF soldiers picked them up.

The approach taken by the Israeli Defense Forces suggests
that refugees, asylum seekers, and migrants crossing the Sinai do not present a
serious threat to armed border guards. Since 2005, when Sudanese refugees began
arriving in Israel via the Sinai border, IDF forces have, according to news
reports, shot and killed several Palestinian and Egyptian "infiltrators" at the
border on the grounds that they posed security risks, in one case killing a
Bedouin man in unclear circumstances, in another firing in self defense on two
men wearing Egyptian army uniforms who attacked an IDF tank crew.[115]
During that same time period, IDF border forces reportedly also killed one
migrant, in June 2006.[116]
However, migrants and currently-serving Israeli Defense Forces (IDF) soldiers
interviewed by Human Rights Watch confirmed that Israeli soldiers typically
approach the migrants-in at least some cases without raising their weapons-and
tell them to put up their hands, search them, ask them where they are from,
offer them water and, if necessary, administer first aid before driving them,
without handcuffing them, to the nearest IDF base. From there they are taken to
one of two larger bases at Har Kholeif or near Ketziot.[117]

An IDF reservist who was stationed at the Nitzana border
base in April and May 2007 told Human Rights Watch,

We knew about the refugee phenomenon, the army talked about
it, so we never opened fire; as far as I know a bullet was never shot. The way
it usually happens is that when night falls they start crossing, and there are
military patrols on the main routes and roads and they are found usually
sitting and waiting for the patrols. They are checked on the spot, the regular
security procedure of asking for their papers, giving them a pat-down, and then
they are taken to the base.[118]

Although the IDF has forcibly returned migrants to Egypt in
August 2007 and August 2008, migrants interviewed in Israel by Human Rights
Watch said that they intended to be intercepted by the IDF near the border
because they viewed Israel as a safe destination.

Families terrorized and separated at the border

Many refugees and migrants try to make the trip to Israel
with their families, but in the desperate final moments near the border,
mothers, fathers and children can become separated.[119]H.B., who had just arrived with his two young boys in Tel Aviv when Human
Rights Watch spoke to him, tried to remember the last time he saw his wife,
moments before their family came under fire:

I heard the bullets whizzing in my ears and I don't know
what happened to the rest [of our group]. I decided to run with my kids for
Israel. I don't know whether the rest are alive. Even now I'm not sure what
happened to my wife. It was raining. We were running towards the border
together. After that I don't know what happened to her.[120]

In Israel, Human Rights Watch met several unaccompanied
children whose parents had been arrested at the Sinai border. Two sisters, ages
8 and 7, became separated from their mother, father, and two siblings at the
border. Two men who came to know the family during their journey to the border
are caring for the sisters. "I dragged the kids across the border," explained
G.H., a 25-year-old Eritrean man living in Tel Aviv. "They were only 20 meters
away from their mother, but she was caught. Now the kids are staying [with
us]."[121]
B.D., a Southern Sudanese man who came to Israel with his wife and son in
mid-2007, is also caring for two other sisters, ages 12 and 6, whose mother and
three siblings were arrested by border guards in February 2008. "We spoke [by
phone] to the father in Cairo. We don't know what to do. The little girl cries
all night, [she] saw someone who was shot. We need help to find where the
mother is."[122]

Little evidence of deterrent effect

Although Egypt's unlawful, lethal policy has presumably
deterred some people from attempting to cross into Israel, the number of asylum
seekers who have crossed the border continues to increase. In early July 2007,
Prime Minister Olmert told the foreign affairs committee of the Knesset that
2,500 people had crossed the border during the first six months of that
year-before Olmert reached his "understanding" with President Mubarak, and
before the first reports that Egyptian border forces were shooting migrants
surfaced in July 2007.[123]
A further 2,500 people nevertheless crossed the border by the end of the year,
and 6,034 applied for asylum in Israel from January to September 2008.[124]
On March 22, 2008, nearly a year after 40 Israeli parliamentarians criticized
the "government's failure to resolve the problem of Darfur region refugees,"
Prime Minister Olmert warned his cabinet that Israel continued to face a
"tsunami" of African migrants "that can only get worse. We must do everything
we can to stop it."[125]

People continue to attempt the crossing despite knowing the
risks involved. A Sudanese man who succeeded in crossing the Sinai border into
Israel with his two children in November, 2007, told Human Rights Watch that his
wife, terrified by the gunfire, ran back and was captured by Egyptian border
guards. "I talked to her for the first time [four months later]. She was in
jail [in Egypt] for two months. She had to work in the jail, cleaning it. She's
there waiting for me to get a job. With my first paycheck, I will send it to
her and she will come across."[126]

Other Abuses during Border
Interceptions by Egyptian Forces

Judging from the accounts given to Human Rights Watch,
Egyptian border police often beat or kicked migrants and refugees during
arrest. Several migrants said they saw police hitting others in the head with
gun butts or were hit themselves. G.B., a 25-year-old man who left Eritrea in
early February 2008, hid from Egyptian police who shot him and one of three travelling
companions. He witnessed this other man being apprehended:

[E]ven though he was already across the wire [that marked
the border] they shined a light on him and told him to come back. He did it, he
went back. He was afraid they'd shoot him again. I fell under some grass so
they did not see me. But he had no grass. Then they beat him. They put him in a
car and drove him away.[127]

In some cases the border police beat migrants while
interrogating them immediately upon arrest. A young Southern Sudanese man who
crossed the border told Human Rights Watch that he heard Egyptian police
beating his traveling companion, "[who] was screaming, 'there are two, there
are two,' because they were telling him to say who he was with."[128]

A Darfuri woman said police threatened her for the same
reason: "Most of our group crossed the border, but me, another woman and man,
and our kids were captured. The soldiers were shooting into the ground beside
us to frighten us. They were asking us: who brought you, who was with you, who
crossed over?"[129]

Some border guards also beat and insulted migrants for their
intent to go to Israel.

According to a Sudanese community leader in Cairo who
visited detained migrants in Egyptian jails, "At the border, the police say you
are a Jew, and they beat you. But they really shout at people from the south
[of Sudan, many of whom are Christian]. They tell them, 'You are the enemy of
Arabs and Islam.'"[130]
N.A., a woman in her twenties, said that after border police captured her,
"They took us to a military camp. They kicked and beat us and said, 'Israel is
a bad country, and dirty.' They would [slap] the kids in the face and say, 'Why
do you want to go to a bad country like that?'"[131]

The Situation for the Wounded Who Reach Israel

People who are seriously wounded by Egyptian border police
at the Sinai border but succeed in crossing receive initial medical treatment
from the state upon entering Israel, and are eligible for health insurance if
they receive work permits and are legally employed, a process that may take
months.[132]
Until that happens, the wounded once discharged from hospital depend on medical
staff to volunteer their help and on a single NGO, Physicians for Human Rights
– Israel, which has a clinic in Tel Aviv.[133]

Most new arrivals to Tel Aviv depend on overcrowded,
unsanitary, volunteer-run refugee shelters for living quarters and food. G.B.,
the Eritrean man quoted above, described the experience that had left him badly
wounded and unable to move from his bed in the hallway of a refugee shelter in
Tel Aviv. After traveling from Eritrea to Khartoum, Aswan, and Cairo,

it took four more days to get to the border with Israel. I
crossed at 3 a.m. There were four of us. They shot two of us. They shot me in
my knee, and I crawled … The Israelis found me after a day and a night, at 7:30
the [following] morning. They took me to an army camp, and to [Soroka] hospital
in Be'er Sheva.

Two weeks later, talking to Human Rights Watch after having
been transferred out of the hospital, G.B. worried that he would fall ill in
the refugee shelter. [134]

Israel's "Coordinated Immediate Returns"

Perhaps the most troubling aspect of Israel's reaction to
the border-crossing phenomenon has been its episodic involuntary returns of
those who cross the Sinai border to Egyptian border police. The underlying
policy, although not acted on for extended periods, remains alive in high-level
government discussion.[135]

"Hot returns" by Israel

According to Israeli refugee lawyers, Israel first conducted
so-called hot returns on the night of April 25, 2007, when IDF soldiers
forcibly returned six Eritrean border-crossers to Egypt. The lawyers said they
were contacted by IDF reservists who refused to obey orders to push the
Eritreans through a hole in the border fence, but had witnessed other soldiers
who did so.[136]Since then, Israel has forcibly returned several groups of migrants.

Following the July-August 2007 killings by Egyptian border
forces, and Egypt's denial of any agreement to accept migrants returned from
Israel, on August 18, 2007, Israeli authorities transferred to the custody of
Egyptian border forces a group of 48 migrants-44 of them Sudanese-who had
crossed the Sinai border during the preceding 48 hours.[137]
Israeli authorities did not allow members of the group to present asylum claims
before forcibly returning them to Egypt. Based on a list of names later
provided by the Egyptian government, UNHCR determined that 23 members of the
group had previously registered as refugees or asylum seekers in Egypt.

According to news reports, on August 19, anonymous Egyptian
officials denied that Israel had sought assurances about the refugees: "Israel
just said, 'Please take them.'"[138]Egyptian Foreign Minister Ahmed Aboul Gheit said that Egypt would accept
the refugees for "very pressing humanitarian reasons" but that this type of
return "would not be repeated again."[139]

Egyptian authorities rebuffed repeated requests by UNHCR to
visit the 48 returnees.[140]
Egyptian officials told Human Rights Watch in March 2008 that all 48 people had
been released in Egypt.[141]
According to news reports, however, Egypt deported between five and 20 of the
group to Sudan (see below), despite the risk of persecution.[142]Sudanese members of the group may also have acquired refugee claims by
virtue of having entered Israel, as statements by Sudanese officials suggested
that they could face persecution for attempting to enter "an enemy nation."[143]
Aliza Olmert, wife of the Israeli prime minister, wrote on July 31, before
Israel returned the group to Egypt, that "sending a Sudanese back to Sudan
after he has visited Israel, an enemy nation, is tantamount to a death
sentence."[144]

One year after the forced returns of the 48 people, on
August 27, 2008, IDF spokesmen confirmed that Israel had again returned an
unspecified number of African border-crossers to Egypt.[145]
One IDF soldier stationed near the Sinai border told Human Rights Watch he had
received orders to return all border-crossers to Egypt and was unaware of any
order or procedure to allow them to present asylum claims; another IDF soldier
said soldiers in her unit detained a group of Eritrean migrants and protested
when the driver of a military bus told them he was going to drive the Eritreans
back to Egypt, temporarily preventing the bus from leaving.[146]
The soldiers who spoke to Human Rights Watch said they had been told by
contacts in the IDF that two groups of detained migrants had been returned at
the Sagi and Kharif mountain areas of the Sinai border. Israeli refugee rights
advocates in September filed a petition for an injunction against future "hot
returns"; in its response to the petition, the Ministry of Defense included an
affidavit written by Brig.-Gen. Yoel Strick, who is responsible for the IDF in
the Sinai border area. According to the Strick affidavit, IDF "commanders in
the field" returned a total of 91 people in four episodes from August 23 to 29,
but failed to follow "binding commands" regarding proper procedures in
conducting the returns.[147]
The whereabouts of the 91 returnees are unknown to Human Rights Watch.

"Coordinated immediate
returns" policy

Israel's policy of allowing border-crossers to be
immediately returned apparently originated in a meeting on March 1, 2006.
According to a report of the meeting by refugee lawyers who were present, the state
legal advisor stated,

From the legal point of view, there is no impediment to the
return to Egypt of a person who infiltrated into Israel, soon after his entry,
such return does not require a legal order or any other procedure. Legally,
this is prevention of entry, and not deportation from Israel. The one condition
to apply to this procedure is proximity in time and in place to the border
crossing.[148]

The proximity of detention to the time and place of entry
are irrelevant to Israel's obligation to abide by the prohibition on
refoulement. In 1977, UNHCR's ExCom, of which Israel is a member, adopted by
consensus Conclusion 6, which "[r]eaffirms the fundamental importance of the
observance of the principle of nonrefoulement-both at the border and within the
territory of a State …"[149]
The ExCom reaffirmed this in October 2004 with Conclusion 99, which calls on
states to ensure "full respect for the fundamental principle of nonrefoulement,
including non-rejection at frontiers without access to fair and effective
procedures for determining status and protection needs."[150]

Proposed enabling
procedures falling short of international refugee law

In September 2007, Israeli NGOs challenged Israel's forcible
return of 48 people to Egypt the previous month. The Israeli High Court of
Justice required the state of Israel to present to the court its proposed
procedures for "coordinated immediate return" of "infiltrators" crossing into
Israel from Egypt.[151]

As presented in December 2007, the proposed procedures,
direct that an "infiltrator" be questioned "by the capturing force in the
field" within three to six hours of capture, following a standard set of
questions. The questioner- "a soldier or a policeman"-needs only to have the
"basic ability to communicate with the infiltrator." If questioning in the
field is impossible, soldiers take the migrant to an army camp where the same
procedures apply.

The questionnaire does not instruct the interviewer to ask
directly whether the migrant fears any risk in his or her country of origin or
in Egypt. If the questioning raises suspicions of a "security or criminal
infiltration," the "infiltrator would be transferred to the relevant …
avenues," but the procedures do not specify what happens if the questioning
raises concerns about a possible need for protection. Instead, the information
derived from the questioning would be transferred to an IDF lieutenant colonel
or colonel, who would decide whether the migrant, based on "his personal
circumstances, the circumstances of his capture and his status in Egypt,"
should be returned to Egypt.

If the migrant's file indicated that the migrant had claimed
a serious danger to his life if he were returned, the proposed procedures
direct the army officer to ask for the advice of "a legal authority from the
army legal division" or another authorized government authority. The authority
could direct the migrant to be transferred to the civil immigration authorities
if he believes that "there is danger to the life or liberty of the infiltrator
in Egypt." However, the procedures specify that this authority would not take
into account any "risk of prosecution or imprisonment or punishment due to the
infiltration or other criminal offenses committed within Egypt." Migrants would
be deported to Egypt within 72 hours upon "receiving the necessary approval" in
"coordination with the relevant Egyptian authorities." Until then, the IDF
would detain the migrant according to temporary or permanent deportation
orders.

Almost every aspect of the proposed procedures-which
stigmatize potential asylum seekers and other migrants as "infiltrators"-falls
short of Israel's commitments under refugee law. The Israeli government's
proposed procedures follow neither of the two "necessary" stages of refugee
status determination: to "ascertain the relevant facts of the case" and to
apply to the facts thus ascertained "the definitions in the 1951 Refugee
Convention and the 1967 Protocol."[152]

UNHCR guidelines establish that applications for asylum
should "be examined within the framework of a specially established procedure
by qualified personnel having the necessary knowledge and experience, and an
understanding of the applicant's particular difficulties and needs."[153]Nothing in the proposed procedures suggests that the "questioner"
operating as part of the "capturing force in the field" should or would have
the knowledge and experience required to conduct a first-instance interview to
ascertain these particular protection needs.[154] Instead of making
available to the applicant the necessary facilities, including the services of
a competent interpreter, for submitting his case, the proposed procedures do
not even require that the "soldier or policeman" who conducts the questioning
has competency in a language the migrant understands.[155]
The procedures are virtually silent as to the treatment of women and children,
whereas UNHCR provides specific guidance to refugee status decision-makers on
interviewing and assessing the claims of these and other vulnerable groups and
individuals.[156]

The proposed procedures do not indicate that the standard
for protection is "a well-founded fear of being persecuted," but rather
establishes a higher threshold of "a real danger to his life." Instead of
aiming to provide interviewers with a thorough knowledge of refugee law, the
proposed procedures only "considers the option" of including a "general review"
of such topics as the Refugees Convention in a vaguely-described training
program for "questioners." Nor do the procedures meet the related requirement
in refugee law that military authorities transfer all migrants to civilian
authorities competent to make first-instance decisions on asylum claims at the
earliest possible time. The procedures merely give the IDF that discretion (but
no guidance).[157]

The proposed procedures direct "questioners" not to inform
migrants of any right to seek asylum: "The purpose of the questioning is to
provide necessary information on the infiltrator and to allow him to provide,
on his own initiative, claims regarding danger to his life emanating from
return to Egypt or from being a refugee."[158]According
to UNHCR, applicants should be duly informed of and afforded the opportunity to
contact a representative of UNHCR.[159]
Yochi Ganessin, who argued the case before the High Court on behalf of the
state, told Human Rights Watch that asking the question directly "is putting
words in their mouths, it's telling them to make refugee claims. He should tell
his own story."[160]

The procedures, in ordering that potential asylum seekers be
deported within 72 hours, violate the right of asylum applicants to remain in
Israel pending a final decision on their cases, and thereby breach Israel's
non-refoulement obligations and international law provisions related to the
right to an effective remedy.[161]

According to the UNHCR ExCom, any official conducting an
asylum interview is required to act in accordance with the principle of
nonrefoulement.[162]
The proposed standard of "real danger to life" risks excluding refugees who
face risks short of mortal danger but that may nevertheless meet the
"well-founded fears of persecution" standard under the Refugee Convention, or
other grounds that would establish a need for protection or a humanitarian
basis for non-return.[163]

Before a state proposes to remove a refugee or asylum seeker
to a third country it must assess whether that country is indeed safe. UNHCR's
Executive Committee has concluded that refugees and asylum seekers who move in
an irregular manner from a country where they have already found protection,
may be returned to that country only if they are protected there against
refoulement.[164]Judicial authorities also hold that the principle of non-refoulement
precludes "the indirect removal … to an intermediary country" in circumstances
in which there is a danger of subsequent refoulement of the individual to a
territory where he or she would be at risk.[165]

The proposed Israeli procedures would stop deportation to
Egypt only if "there is a danger to the life or liberty in Egypt if the person
is returned." An assessment limited only to the immediate danger a
third-country national might face to life or liberty in Egypt is not a
sufficient assessment of risk; such an inquiry must include not only the risk
of removal by Egypt with insufficient regard for protection needs, but also the
risk of harm in the migrant's country of origin.

Moreover, the proposed procedures fail to address the fact
that Sudanese nationals may become refugees sur place-they have a well-founded
fear of persecution if returned to their home country by virtue of events that
occurred after, rather than before they left: that is, by entering Israel, a
country that Sudan considers to be an enemy state.[166]

Ganessin, the lawyer at the Ministry of Justice, told Human
Rights Watch,

The real point is that Egypt should be considered a safe
first country. It should be this under refugee law. It has a UNHCR office. It
has also signed the Refugee Convention and the African refugee convention. Many
people who made it to Israel got recognized in Egypt-HCR there gave them blue
or yellow cards [indicating refugee and asylum seeker status, respectively]. So
from an Israeli perspective, Sudanese and Eritreans should be protected in
Egypt.[167]

Egypt, in fact, has not protected them. Egypt held in
incommunicado detention asylum seekers and refugees sent back by Israel on
August 18, 2007. Egyptian authorities may have committed refoulement on October
28, 2007, when they reportedly removed to Sudan at least five of the group,
after they were held at an unknown location and without being given the
opportunity to make claims for refugee status. An Associated Press article
later quoted an anonymous Egyptian Ministry of Foreign Affairs official as
saying that 20 of the group had been "asked to leave" Egypt.[168]

The proposed Israeli procedures thus appear to instruct
soldiers and policemen charged with questioning "infiltrators" to disregard
practices and laws in Egypt, and in third countries, that could bear directly
on a migrant's possible refugee claim.[169] It is hard to
understand otherwise the proposed procedures' reliance on the concept of
"coordinating with Egyptian authorities" to provide for the smooth and safe
return to Egypt of migrants attempting to cross into Israel. As noted above,
the Egyptian Ministry of Foreign Affairs has stated that no "coordination"
agreement exists.[170]
Even if Egypt had provided assurances that it would treat returnees humanely,
human rights experts and authorities have concluded that "diplomatic
assurances" are inadequate safeguards to ensure that deportees to countries
known to practice torture will be protected.[171]

According to Ganessin, "[Israel] agrees with the [Refugee]
Convention's other prohibited grounds of persecution. But you can't get
protection under non-refoulement just for committing a national crime that
carries a prison sentence, like desertion from army service in Eritrea or
crossing the Egyptian border illegally."[172] This narrow view
of Israel's non-refoulement obligations seems incompatible with the concept of
sur place refugee claims. It further deems it irrelevant that Eritrean
authorities have tortured or executed deserters, and that torture is a
well-documented and pervasive practice in detention facilities and at all
stages of arrest and detention in Egypt.[173]

Continuing political
instance on "coordinated returns"

In February 2008, in rejecting Prime Minister Olmert's
recommendation for tougher rules of engagement at the border (see above),
Defense Minister Barak argued that the government should re-activate the policy
of immediate "coordinated returns" to Egypt.[174]Haaretz
quoted then-Foreign Minister Tzipi Livni as saying, at the same meeting, that
"a distinction must be made between refugees and job seekers. Against the
latter we must employ harsh measures at the border initially, and later at the
detention facilities. We mustn't provide solutions for people who come here
seeking work."

Also at the February 24 meeting, the prime minister
reportedly "directed authorities to expel 4,500 Africans, including people from
Ivory Coast, Ghana and Nigeria, by the end of the week."[175]
The order was not carried out, and at another meeting on the issue on March 23,
"Olmert expressed anger that the IDF was not conducting 'hot returns.'" He and
Barak "criticized the Ministry of Foreign Affairs for not holding negotiations
with Eritrea regarding the infiltrators, as most are from that country. Olmert
instructed the Ministry to find a third country within a week that will be
willing to accept the African infiltrators."[176] Olmert reportedly
again requested the defense minister to "stop the infiltrations, even if it
called for a 'moderate use of force.'"[177] The next day,
immigration police conducted sweeps of privately-run refugee shelters in Tel
Aviv and arrested approximately 300 people. Many were detained for four days,
separated from their families, and in some cases transferred to prisons in
other cities before being released (see Chapter VII).

The August 2008 returns of 91 people, described above, went
ahead despite court approval of the enabling procedures for the coordinated
returns policy still being pending. An IDF spokesmen who confirmed the returns
(without specifying the number) to Human Rights Watch said that they
"follow[ed] instruction in recent months from the political echelon to do so."[178]

[73]UNHCR's
position is that coordinated returns between countries are acceptable in
principle if credible safeguards are in place, including guarantees of
non-refoulement and humane treatment. Human Rights Watch interview with Steven
Wolfson, UNHCR liaison, Tel Aviv, March 4, 2008. On June 20, 2007, Sharon
Harel, a UNHCR representative, stated to a Knesset committee that Israel should
not deport Sudanese to Egypt due to the absence of such safeguards. However,
Israeli authorities later claimed, apparently on the basis of statements by
Michael Bavli, the head representative of UNHCR in Israel, that UNHCR approved
the returns procedure used to forcibly deport the 48 people. The Israeli
Ministry of Foreign Affairs, in a statement on its website titled "MFA
Newsletter: Behind the Headlines: Israel and the Darfur refugees" (which was
later taken down), claimed that "the 46 [sic] infiltrators returned to Egypt"
were returned "in accordance with the Olmert-Mubarak agreement, under the
supervision of the UN Refugee Agency, and on condition they would not be
returned to Sudan" (screen-shot of Israeli MFA website dated August 23, 2007,
on file with Human Rights Watch). In a submission to the Israeli High Court of
Justice dated September 9, 2007, lawyers for the State of Israel cited a letter
from Bavli, dated July 23, to support their argument that returns to Egypt did
not "require any legal order or any procedure, as long as it is coordinated
with Egypt, on the basis of the aforementioned understandings, according to
which Egypt is obligated to secure the lives and the safety of the infiltrators
who would be returned to its territory … We add that this position is the same
as UNHCR's position." (Quoted in letter from Anat Ben Dor, Tel Aviv University
Refugee Law Clinic, and Yonatan Berman, Hotline for Migrant Workers, to Mr.
Radhouane Nouicer, Director of the Middle East and North Africa Bureau, UNHCR
Geneva, September 13, 2007, copy on file with Human Rights Watch.) Bavli's
letter, as quoted in the State's submission, stated that based on Egypt's
agreement not to return refugees to their state of origin, "there is no reason
which prohibits Israel from barring entry (even if only as an emergency step in
a situation which is getting out of hand)." The letter compared "the agreements
that have been reached between the prime minister and the president of Egypt on
the issue of the continued passage of asylum seekers" to other formal
agreements on cross-border movements of people, like those between the US and
Canada. Michael Bavli, UNHCR, letter to Israeli state attorney Yochi Ganessin,
Ministry of Justice, July 23, 2007, copy on file with Human Rights Watch. The
letter was in line with Bavli's prior statements to policymakers. The Israeli
newspaper Haaretz reported that at a meeting chaired by Prime Minister
Olmert on July 1, 2007, Bavli "warned that unless the wave of refugees is not
stemmed in the south, 'the ability of the UN to deal with the influx of
refugees will collapse. It is already terribly behind.'" According to Haaretz,
Bavli "made it clear that he is not opposed to the agreement between Olmert and
Mubarak for the immediate deportation of the refugees who crossed into Israel
from Egypt, as long as Egypt does not then send them back to Sudan." See
Reuters and Shahar Ilan, "Egyptian police fire at Sudanese refugees trying to
enter Israel," Haaretz, July 4, 2007, http://www.haaretz.com/hasen/spages/878264.html
(accessed April 10, 2008). According to an article published by the UN's IRINnews
service, Bavli justified the coordinated returns on the basis that "'[y]ou
cannot "shop" for asylum' …. 'Asylum is given at the first country the refugee
enters. This is not about seeking the most comfortable state.'" See
"ISRAEL-SUDAN: Government to turn back refugees at border," IRINnews,
July 4, 2007, http://www.irinnews.org/Report.aspx?ReportId=73078 (accessed May
4, 2008). In a second letter, dated September 20, 2007, after Israel forcibly
deported 48 people, Bavli reversed this position, writing that no bilateral
agreement on returns existed. Michael Bavli, letter to Yochi Ganessin,
September 20, 2007, on file with Human Rights Watch.

[78]Ellen
Knickmeyer, "Flight from Darfur Ends Violently in Egypt," Washington Post,
August 19, 2007,
http://www.washingtonpost.com/wp-dyn/content/article/2007/08/18/AR2007081801236_pf.html
(accessed April 21, 2008). Human Rights Watch interviewed members of Haroun's
family, and Sudanese community leaders in Cairo with personal knowledge of her
case, who stated that she was seven months pregnant when she was killed.

[83]"Israel: Halt Summary Expulsion of Sudanese Migrants: Unknown Fate Awaits
Sudanese Fleeing From Darfur," Human Rights Watch news release, August 24,
2007, http://hrw.org/english/docs/2007/08/22/isrlpa16717.htm; "Egypt warns it
won't take back refugees who cross into Israel," Associated Press, August 11,
2007, http://www.haaretz.com/hasen/spages/892139.html (accessed October 14); Sheera
Claire Frenkel, "Cairo warns it won't take back refugees who sneak into
Israel," Jerusalem Post, August 12, 2007. An English translation of the
Ministry of Foreign Affairs statement, "Egyptian efforts to combat trespassing
across the international borders with Israel," dated August 11, 2007, is
available at
http://www.mfa.gov.eg/Missions/canada/OTTAWA/Embassy/en-GB/Press%20and%20Media/Press_Releases/borders
(accessed April 15, 2008).

[84]In
addition to the measures discussed, the Israeli government is reportedly also
considering constructing a wall along the entire Sinai border, at a projected
cost exceeding US$1 billion. Gad Lior, "New fence on Israel – Egypt border to
cost over $1b," YNET, February 6, 2008 (accessed October 15, 2008).

[86]
Media reports state that Egyptian police killed 22 migrants in 2008; an
additional 10 killings were reported in 2007. See Appendix A of this report for
details. On March 16, 2008, the Cairo office of the Sudanese People's
Liberation Movement (SPLM) provided Human Rights Watch with a list of four
Southern Sudanese and two Darfuris whom the office had verified were killed at
the border, but it was not possible for us to determine whether these were
additional to cases reported in the media, which often do not name the
deceased.

[88]Ministry of Foreign Affairs, "Egyptian efforts to combat
trespassing across the international borders with Israel." See below for a
discussion of terrorist bombings in the Sinai and in southern Israel as they
relate to border security.

[90]
On August 28, 2005, Egypt reached an agreement with Israel allowing the
deployment of a new military contingent comprising 750 soldiers along the
Philadelphi Road bordering the Gaza Strip. International Crisis Group (ICG),
"Egypt's Sinai Question," Middle East/North Africa Report N°61, January 30,
2007,
http://www.crisisgroup.org/library/documents/middle_east___north_africa/egypt_north_africa/61_egypts_sinai_question.pdf
(accessed October 1, 2008), p. 6. The agreement was amended on July 11,
2007-see Multinational Force and Observers (MFO) website,
http://www.mfo.org/1/4/28/base.asp (accessed May 12, 2008)

[91]
The MFO currently consists of approximately 3,000 military and civilians and
1,900 observers. The MFO also monitors the deployment of the 750 Egyptian
troops along the Gaza–Egypt border. Ibid.

[92]
"Egypt: Terrorism Trial Shows Serious Flaws," Human Rights Watch news release,
December 12, 2006, http://hrw.org/english/docs/2006/12/13/egypt14829.htm;
"Egypt: Halt Execution of Accused Taba Bombers," Human Rights Watch news
release, June 11, 2007,
http://www.hrw.org/english/docs/2007/06/11/egypt16131.htm. From October 2004 to
April 2006, five terrorist attacks occurred in the Sinai-three against tourist
resorts in Taba, Sharm el-Sheikh, and Dahab, and two against the Multinational
Force and Observers. Egyptian officials attributed the attacks to a single
terrorist organization called Tawhid wa Jihad (Oneness and Struggle) allegedly
linked to Palestinian Islamist organizations and comprised of Bedouin and
Palestinian-descended Sinai residents. One study warned that this "official
version of events" should be "treated with caution." See ICG, "Egypt's Sinai
Question," p. 3. Police arrested and detained without charge an estimated 3,000
people in northern Sinai in connection with the bombings in Taba in October
2004; many were tortured. Human Rights Watch, Egypt: Mass Arrests and
Torture in Sinai, vol. 17, no. 3(E), February 2005,
http://hrw.org/reports/2005/egypt0205/.

[93]In
early 2007 a suicide bomber from Gaza crossed into Israel via the Sinai border
and killed three civilians in an attack on a bakery in Eilat; the Al-Aksa
Martyrs Brigades and Islamic Jihad claimed joint responsibility for the attack
and identified the bomber as Muhammad Faisal al-Siksik, age 21, from northern
Gaza. Greg Myre, "Suicide Bomb Kills 3 in Bakery in Israel," New York Times,
January 29, 2007,

http://www.nytimes.com/2007/01/29/world/middleeast/29cnd-mideast.html?partner=rssnyt&emc=rss&pagewanted=all
(accessed October 1, 2008). On February 4, 2008, two suicide bombers attacked
Dimona, in the Negev; one blew up his suicide belt, the other died in the
attempt. Isabel Kershner, "Suicide Attack in Israel Kills One," New York
Times, February 5, 2008,
http://www.nytimes.com/2008/02/05/world/worldspecial/05mideast.html?_r=2&ref=middleeast&oref=slogin&oref=slogin
(accessed October 1, 2008). Both Hamas's military wing and the Fatah-affiliated
Al-Aksa Martyrs Brigades claimed exclusive responsibility. Hamas claimed the
men came from Hebron in the West Bank, but the Al-Aksa Martyrs Brigades said
they came from Gaza, crossed into the Sinai, and thence into Israel. Amos Harel
and Mijal Grinberg, "Hamas claims Dimona attack, says bombers came from
Hebron," Haaretz, April 2, 2008,
http://www.haaretz.com/hasen/spages/951028.html (accessed October 1, 2008).

[94]For
information about the weapons smuggling tunnels, see, for example, Human Rights
Watch, Razing Rafah: Mass Home Demolitions in the Gaza Strip, October
2004, http://hrw.org/reports/2004/rafah1004/. Regarding the shootout in which
two Egyptian border guards were killed in Rafah, see Conal Urquhart, "Two
Egyptian soldiers killed after Palestinians breach border wall with bulldozer,"
Guardian (London), January 5, 2006,
http://www.guardian.co.uk/world/2006/jan/05/israel (accessed July 13, 2008).
For a report that 45 Egyptian policemen were injured in clashes with
Palestinians after tens of thousands of Gaza residents streamed into Egypt
after Hamas blew up the border wall, see Yusri Mohamed, "Egypt rounds up
hundreds of Palestinians in Sinai," Reuters, February 5, 2008.

[95]Media
reports and interviews with migrants identify smugglers as "Bedouins," although
Human Rights Watch cannot confirm the ethnic identity of any smugglers.
According to ICG, "four major Bedouin tribes share the border region: the
Tarabin, the Tiyaha, the `Azazma and the Ahaywat." ICG, "Egypt's Sinai
Question," p. 9.

[97]
US State Department, Office to Monitor and Combat Trafficking in Persons,
"Trafficking in Persons Report – 2006: Egypt," June 5, 2006,
http://www.state.gov/g/tip/rls/tiprpt/2006/65988.htm (accessed October 1,
2008). The State Department report also asserts that smugglers in the Sinai,
"who are very knowledgeable of desert routes and methods of avoiding detection,
routinely rape and abuse victims during journeys that can take up to two months
to complete." Although none of the migrants who fled or attempted to flee and
whom Human Rights Watch spoke with made allegations of sexual or other abuse by
smugglers, human rights activists who work with migrants confirmed the State
Department's claim. Human Rights Watch interview with Yiftach Milo, Assaf
(Israeli NGO), Tel Aviv, February 26, 2008; and Human Rights Watch telephone
interview with Elsa Chyrum, Human Rights Concern Eritrea, May 12, 2008.

[99]While
Egypt argues that its fight against smuggling and trafficking necessitates the
use of lethal force, it has failed to take other steps to combat trafficking,
including criminalizing human trafficking in line with its international
commitments. On March 5, 2004, Egypt ratified the United Nations Convention
Against Transnational Organized Crime and the supplemental Protocol to Prevent,
Suppress and Punish Trafficking in Persons (Protocol to
Prevent, Suppress and Punish Trafficking in Persons, Especially Women and
Children, Supplementing the United Nations Convention Against Transnational
Organized Crime, G.A. Res. 25, annex II, U.N. GAOR, 55th Sess., Supp. No. 49,
at 60, U.N. Doc. A/45/49 (Vol. I) (2001), entered
into forceSeptember 9, 2003; the UN Convention itself has
not yet entered into force.) On July 11, 2007, the Egyptian
Council of Ministers agreed to establish a National Coordinating Committee to
Combat and Prevent Trafficking in Persons. However, Egypt has still not enacted
domestic legislation to give effect to the protocol. In 2007, "for the third
year in a row, [it] failed to take any steps" to do so, and "made no efforts to
protect trafficking victims."US State Department, Office to Monitor and Combat
Trafficking in Persons, "Trafficking in Persons Report – 2007: Egypt," June 12,
2007, http://www.state.gov/documents/organization/82902.pdf (accessed October
1, 2008).

[100]Egypt Ministry of Foreign Affairs, "Egyptian efforts to combat trespassing
across the international borders with Israel," English translation dated
August 11, 2007, http://www.mfa.gov.eg/Missions/canada/OTTAWA/Embassy/en-GB/Press%20and%20Media/Press_Releases/borders
(accessed April 15, 2008). According to news reports, the statement was
originally released on August 10, 2007.

[106]"Traffickers
kill Egyptian policeman on border," Reuters, August 18, 2008. The Central Security
Forces (CSF) were "formed in 1977 to obviate the need to call upon the armed
forces to deal with domestic disturbances," and augment Egypt's police force.
The CSF are "responsible for guarding public buildings, hotels, strategic sites
(such as water and power installations), and foreign embassies … [and] helped
direct traffic and control crowds." See Helen Chapin Metz, ed., Egypt: A
Country Study, Federal Research Division, Library of Congress, 1990, LOC
No. DT46 .E32 1991. In addition to these two incidents, some news reports claim
smugglers have killed three Egyptian border police, but this appears to be
incorrect. On July 7, 2008, news reports first claimed that "masked" smugglers
leading migrants into Israel had killed an Egyptian officer. See "Traffickers
shoot dead Egypt officer on Israel border," Agence France-Presse, July 7, 2008.
However, Israel Army Radio later reported that Israeli soldiers killed the
Egyptian officer, Mohamed Farul Ali al-Kersh, when he wandered into Israeli
territory and opened fire on the Israeli forces, possibly mistaking them for
smugglers. See "Egyptian officer shot dead by Israeli fire," al Bawaba,
July 9, 2008, http://albawaba.com/en/news/231398 (accessed August 26, 2008).

[108]
"Egypt kills man at Israel border, 30 migrants held," Reuters, July 12, 2008.
Unnamed security sources identified the man as Ahmed Salim Oweid, and said he
was shot when he refused police orders to stop. "He was hit twice and died of
his wounds," according to the Reuters article, while "a group of African
migrants who were with him fled and were being pursued by police."

[109]Yusri
Mohamed, "Sudan migrants make dangerous desert run for Israel," Reuters, July
11, 2007. The smuggler reportedly gathered migrants in a tent around 15
kilometers south of the Rafah crossing on the Egyptian-Gaza border, then drove
them in a small, unmarked truck along routes without police checkpoints to
border areas where there are gaps in Egyptian and Israeli security lines. "But
our role is limited," the smuggler said. "We just ease their crossing through
the barbed wire and into Israeli territory."

[115]On May
22, 2008, Israeli forces killed Ayesh Suleiman Mussa, a Sinai Bedouin, who had
crossed into Israel at an unspecified location; Egyptian officials claimed he
was a drug smuggler. See "Body of Egypt Bedouin killed by Israelis returned,"
Agence France-Presse, May 22, 2008, http://www.haaba.com/news/2008/05/22/7-137075/body-of-egypt-bedouin-killed-by-israelis-returned.htm.
See also, for example, Yaakov Katz, "IDF probes 'strange' shoot-out at Sinai
border," Jerusalem Post, June 4, 2006 (in self-defense, IDF soldiers
killed two men in Egyptian army uniforms who fired on them). Another report is
ambiguous as to the identity of a person killed by the IDF along the border in
mid-2006, identifying him only as one of "six people carrying bags" who did not
stop when requested to do so. See Efrat Weiss, "IDF kills 2 Egyptian officers
on border," YNet, June 2, 2006,
http://www.ynetnews.com/articles/0,7340,L-3257980,00.html.http://www.jpost.com/servlet/Satellite?pagename=JPost%2FJPArticle%2FShowFull&cid=1148482092580
(accessed July 13, 2008). In a third incident, IDF soldiers shot at Egyptian
border police who had crossed into Israel while pursuing men they believed to
be drug smugglers. Yuval Azoulay, "IDF rebukes Egypt over fatal cross-border
manhunt," Haaretz, July 8, 2008,
http://www.haaretz.com/hasen/spages/1000144.html.

[116]An
Israeli NGO, in a letter to the IDF demanding an inquiry, referred to
Hebrew-language media reports that the IDF had killed a Sudanese man on June
30, 2006. See Physicians for Human Rights – Israel, "Demand for Investigation
into the Death of Sudanese Asylum Seeker on the Israel-Egypt Border," July 1,
2006.

[117]Human
Rights Watch telephone interviews with IDF soldier and IDF official (names
withheld) serving on the border in the southern command, March 31 and April 3,
2008.

[119]
In a highly-publicized case of family separation, Aliza Olmert wrote a letter
to her Egyptian counterpart Susan Mubarak, successfully pleading for the
reunification (in Israel) of a young girl with her migrant parents, who had
left her behind in Egypt as they rushed across the border into Israel. See
Kershner, "Israel Returns Illegal African Migrants to Egypt," New York Times.

[124]
Barak Ravid, "Gov't: 5000 people have entered Israel illegally from Sinai in
2007," Haaretz, December 30, 2007. Other annual figures provided by
UNHCR Israel to Human Rights Watch. The rate of arrivals to Israel dropped in
March 2008, but it is difficult to determine whether this is a lasting trend,
or to identify its causes.

[133]Dr.
Kobi Arad, head of the emergency room at a hospital in Eilat, described a
network of medical staff throughout Israel who volunteered time and assistance
to help wounded migrants and refugees who were not eligible for insurance, or
whose injuries and illnesses, including several cases of HIV, the national
healthcare system excluded as conditions preexisting the migrants' entry to
Israel. Human Rights Watch interview with Dr. Kobi Arad, Eilat, March 3, 2008.

[134]
Human Rights Watch interview with G.B., Tel Aviv, March 2, 2008. At the time,
water was overflowing the shelter hallway floor from the nearby toilet.

[135]Human
Rights Watch, Letter to the High Court of the State of Israel Re: Proposed
Border Asylum Procedure, December 21, 2007.

[140]
Ben Lynfield, "UN official: 48 African refugees missing since deported by IDF,"
Haaretz, October 28, 2007, http://www.haaretz.com/hasen/spages/917776.html
(accessed October 1, 2008). The article quotes UNHCR spokesman Peter Kessler
as stating, "We've been requesting
information [from the government of Egypt] about [the 48 returnees] and their
whereabouts since August and we haven't received anything."

[141]Human
Rights Watch interviews with Tareq Maaty, March 16; and B.N., March 17, 2008.
Human Rights Watch requested further information about the 48 returnees from
authorities at the Egyptian Ministry of Interior. To date, there has been no
response. Human Rights Watch contacted two persons and attempted to contact two
others who might have been members of the group of 48 (one in Israel, two in
Egypt, and one in Sudan), but was unable to confirm their stories.

[142]"Israel
struggling to deal with influx of African asylum seekers," Associated Press
reproduced in the International Herald Tribune, February 26, 2008,
http://www.iht.com/articles/ap/2008/02/26/africa/ME-GEN-Israel-Escaping-Africa.php
(accessed May 16, 2008): "Last year, Israel sent a group of 48 African
refugees, mostly from Darfur, to Egypt after receiving assurances that they
would not be harmed. But 20 of them were 'asked to leave' and returned to
Sudan, an Egyptian Foreign Ministry official said."

[143]In
early July 2007, an Israel Radio report cited the Sudanese minister of interior
as threatening to prosecute any Sudanese who had participated in an alleged
Israeli plot encouraging their emigration in order to damage the Khartoum
government's image. Sheera Claire Frenkel, Ilana Diamond et al., "Sudan: Israel
encouraging emigration," Jerusalem Post, July 9, 2007. In July 2007 the
Sudanese refugees commissioner, Mohammed Ahmed al-Aghbash, claimed that
Sudanese refugees in Israel wanted to "implement Zionism agendas against
Sudan," and called on Egyptian authorities to "firmly penalize any Sudanese
refugees if they were found trying to infiltrate through Egypt into Israel."
"Egypt sends refugees to uncertain fate in Sudan," Agence France-Presse,
October 29, 2007, reproduced at http://www.reliefweb.int/rw/rwb.nsf/db900sid/EMAE-78FM49?OpenDocument
(accessed July 13, 2008).

[148]
Protocol of the March 1, 2006 meeting, issued on March 16, 2006, quoted in
letter from Anat Ben Dor, Tel Aviv University Refugee Law Clinic, and Yonatan
Berman, Hotline for Migrant Workers, to Mr. Radhouane Nouicer, Director of the
Middle East and North Africa Bureau, UNHCR Geneva, September 13, 2007 (copy on
file with Human Rights Watch).

[151]
The High Court of Justice, petition HCJ 7302/07, served on August 28, 2007 by the
Hotline for Migrant Workers and the Refugee Rights Clinic at Tel Aviv
University on behalf of the Association for Civil Rights in Israel, the Israel
Religious Action Center, Physicians for Human Rights – Israel and Assaf. The
State of Israel presented to the High Court a "Complementary Announcement on
Behalf of the State" (December 3, 2007). The complementary announcement
includes, as an annex, the proposed procedures, entitled, "IDF permanent
operational order 1/3.000, Procedure for Immediate Coordinated Returns,
Infiltrators on the Israeli / Egyptian Border, November 2007, Southern Sector."

[152]UNHCR,
Handbook on Procedures and Criteria for Determining Refugee Status under the
1951 Convention and the 1967 Protocol relating to the Status of Refugees,
p. 29.

[154]
According to the procedures, only if "the capturing force cannot perform the
questioning" would the applicant be moved from the "field" to "a division
military camp." Complementary Announcement on Behalf of the State (December 3,
2007), para. 5.

[156]
The proposed procedures say only, "The questioning of a minor would be done by
the interviewer, as far as possible by questioning the minor or the adult with
whom he had infiltrated." Complementary Announcement on Behalf of the State
(December 3, 2007), annex 1, art. A.4.C. By contrast, the UNHCR Handbook says
that "it will generally be necessary to enroll the services of experts
conversant with child mentality" and possibly the appointment of a legal
guardian in order to ensure that the best interests of the child are "fully
safeguarded." UNHCR Handbook on Procedures and Criteria for Determining
Refugee Status under the 1951 Convention and the 1967 Protocol relating to the
Status of Refugees. p. 214. See also, inter alia, UNHCR, "Refugee Children:
Guidelines on Protection and Care (1994), Guidelines on the Protection of
Refugee Women"(1991), "Guidelines on Policies and Procedures in Dealing
with Unaccompanied Children Seeking Asylum" (1997), and Handbook on
Procedures and Criteria for Determining Refugee Status under the 1951
Convention and the 1967 Protocol relating to the Status of Refugees, pp.
206-219, which also includes refugee status determinations for mentally
disturbed persons.

[157]
UNHCR Conclusion 8 (XXVIII) – 1977: "Determination of Refugee Status," at
(e)(iii). The ExCom further states that if the applicant is not recognized, he
should be given a reasonable time to appeal for a formal reconsideration of the
decision, either to the same or to a different authority, whether
administrative or judicial, according to the prevailing system. It is highly
unlikely that the ExCom contemplated that the armed forces would be an
appropriate administrative or judicial authority for examining refugee claims.
Ibid., at (e)(vi).

[161]
UNHCR's ExCom has concluded that "the applicant should be permitted to remain
in the country pending a decision on his initial request by the competent
authority" and "should also be permitted to remain in the country while an
appeal to a higher administrative authority or to the courts is pending." UNHCR
Conclusion 8 (XXVIII) – 1977: "Determination of Refugee Status," at (e)(vii).

[163]If a
migrant presents asylum claims during an initial interview, the only reason not
to pass the migrant on to civil immigration authorities would be if the
migrant's claims were "clearly abusive" or "manifestly unfounded." Even in such
cases the applicant should be given "a complete personal interview by a fully
qualified official and, whenever possible, by an official of the authority
competent to determine refugee status." ExCom Conclusion No.30 (XXXIV) 1983:
"The Problem of Manifestly Unfounded or Abusive Applications for Refugee Status
or Asylum," at (d), (e), (i).

[166]Persons
who were not refugees when they left their countries, but who became refugees
at a later date are called refugees sur place. A person might become a
refugee sur place because of changes that occurred in the country of
origin after departure or because of the person's own actions while outside the
country. See UNHCR Handbook on Procedures and Criteria for Determining
Refugee Status under the 1951 Convention and the 1967 Protocol relating to the
Status of Refugees, pp. 94-96.

[168]Aron
Heller, "Israel: No Promised Land for Africans," Associated Press.

[169]
The proposed procedures instruct the relevant authority not to take into
account any "risk of prosecution or imprisonment or punishment due to the
infiltration or other criminal offenses committed within Egypt."

[173]The US
Department of State, in its 2007 "Country Reports on Human Rights Practices," summarized
abuses in Eritrea as follows: "[T]he government continued to authorize the use
of lethal force against anyone resisting or attempting to flee during military
searches for deserters and draft evaders, and the practice reportedly resulted
in deaths during the year. Several persons detained for evading national
service died after harsh treatment by security forces. There were reports that
individuals were severely beaten and killed during roundups of young men and
women for national service. There were reports of summary executions and of
individuals shot on sight near the Ethiopian and Sudanese borders, allegedly
for attempting to cross the border illegally." US Department of State, Bureau
of Democracy, Human Rights and Labor, "Country Reports on Human Rights
Practices – 2007: Eritrea," March 11, 2008,
http://www.state.gov/g/drl/rls/hrrpt/2007/100480.htm (accessed August 25,
2008). On torture in Egypt, see Human Rights Watch, Egypt's Torture Epidemic,
February 2004, http://hrw.org/english/docs/2004/02/25/egypt7658.htm. Other
Human Rights Watch reports on torture in Egypt include In a Time of Torture:
The Assault on Justice In Egypt's Crackdown on Homosexual Conduct (New
York: Human Rights Watch, 2004), http://hrw.org/reports/2004/egypt0304; Egypt:
Mass Arrests and Torture in Sinai, vol. 17, no. 3(E), February 2005,http://hrw.org/reports/2005/egypt0205/;
Black Hole: The Fate of Islamists Rendered to Egypt, vol. 17, no. 5(E),
May 2005,http://hrw.org/reports/2005/egypt0505/.

[175]Aron
Heller, "Israel: No Promised Land for Africans," Associated Press, February 26,
2008.

[176]Hati
Sini and Barak Ravid, "Prime Minister to return infiltrators to Egypt
immediately upon their capture" (רה"מהורהלהחזירלמצריםמסתנניםמידעםלכידתם), Haaretz
(in Hebrew), March 23, 2008,
http://www.haaretz.co.il/hasite/pages/ShArtPE.jhtml?itemNo=967594&contrassID=2&subContrassID=1&sbSubContrassID=0
(accessed October 12, 2008); a less-detailed version of the story is available
on Haaretz's English-language website: Barak Ravid and Associated Press,
"PM: Israel to send back refugees who infiltrate from Sinai," March 23, 2008,
http://www.haaretz.com/hasen/spages/967272.html (accessed October 12, 2008).

[177]Roni Sofer,
"Olmert: We must curb infiltrations from Egypt," YNET, March 23, 2008.